there, he saw the dead body of his sister-Sharda. At the relevant time, PW6 Ramesh

Rajput, API, was attached to Police Station Sindkhedraja. He received the complaint

Exh.33 of Pralhad and on the basis of it, he registered the offence. Earlier on the same

day, accidental death was registered. PW6-Rajput, (API) recorded the statements of

the witnesses He arrested the accused. He conducted the spot panchnama and took

charge of box of ‘Endosulfan’ under the said spot panchnama. PW6 sent viscera and

box of Endosulfan to Chemical Analyser’s office,for analysis. On completion of

investigation, he submitted the charge sheet in the Court of learned JMFC. The case

was committed to the Court of Sessions. Charge was framed by the learned trial

Judge. After conducting the trial and on analysis of evidence and hearing both sides,

the learned trial Judge convicted the accused, as aforesaid. Hence, this Appeal.

3. I have heard Shri P B Patil, the learned counsel for the appellant/

accused and Shri S.B. Bissa, the learned Additional Public prosecutor for the

respondent-State. With the assistance of both the counsels, I have gone through the

entire record of the case meticulously.

4. The learned counsel for the appellant contended that the impugned

judgment and order is illegal and perverse, inasmuch as the evidence of the witnesses

examined by the prosecution do not in any manner indicate that the ingredients of

section 304-B of IPC are attracted. He further submitted that the allegations against

the accused are that he demanded an amount of Rs. 30,000/- from the relatives of the

deceased; however the said demand was not made by them at all and as such, it was

an improvement made by the witnesses, while they were examined by the prosecution.

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CRI.APPEAL.600.03 4

He submitted that Sharda was carrying pregnancy of eight months at the time of her

death. Sharda was intending that her delivery should be at her parents’ place. However

since she had lost her earlier child just seven days after the delivery at her parental

place, the accused was insisting that the parental place being a place in remote village,

her second delivery should be done at her matrimonial place i.e.Sindkhedraja. He

further submitted that since Sharda was not intending that her delivery should be

carried out at Sindkhedraja, out of desperation, she might have taken the extreme

step.

5. Per contra, Shri S.B.Bissa, the learned A.P.P. contended that since it is

proved by the prosecution that the death of Sharda occurred just within seven years of

her marriage otherwise than under normal circumstances and soon before her death

she was subjected to cruelty at the hands of the accused, the offence comes under the

purview of Sec.304B of IPC. He contended that the learned trial Judge has rightly

convicted the accused.

6. In this context, it would be advantageous to go through the provisions of

Section 304-B of the IPC which reads as under :

“304-B : Dowry death : (1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for dowry,
such death shall be called “dowry death”, and such husband or relative
shall be deemed to have caused her death ”

maintain her nicely and therefore he accompanied the accused and one Vishwanath

and proceeded to Jambhora to the parental house of Sharda. Sharda was not ready

to go however, PW 5 gave an understanding to her that accused has promised that

he would maintain Sharda nicely. PW5 stated that the father of Sharda sent her with

him to Sindkhedraja accordingly. PW5 appears to be related to deceased Sharda as

well as the accused. PW5 in unequivocal terms stated that when Sharda came with

him from Jambhora to Sindkhedraja, she was happy till her death. Admittedly, PW 5

was the resident of the same village i.e. Sindkhedraja where Sharda used to reside

with her husband. The said version indicates that Sharda did not complain anything

against the accused soon before her death. If at all the accused continued ill-treating

Sharda after fetching her from Jambhora to Sindkhedaraja, Sharda would have

certainly complained to PW5 about the alleged ill-treatment for fulfilling the demand of

money for purchasing motorcycle. However, PW5 specifically stated that Sharda was

happy till her death. An improvement is pointed out in his testimony that Sharda

disclosed to him that accused was demanding amount for purchasing motorcycle. He

also made an improvement in his testimony before the Court that Sharda disclosed him

that accused used to beat her and therefore she was not willing to reside with him,

however PW5 gave understanding to the accused as well as Sharda. Thus, all these

improvements made by PW5 go to the root of the prosecution case and creates a

serious doubt about Sharda disclosing PW5 regarding the alleged ill-treatment at the

hands of the accused for the demand of Rs. 30,000/- for purchasing motorcycle. The

testimony of PW5 does not inspire any confidence.

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CRI.APPEAL.600.03 9

11. The prosecution also relied upon the testimony of PW3-Sanjay Aawhale

who was resident of Jambhora, in order to prove the alleged demand. PW3 deposed

that whenever Sharda used to come to Jambhora, she used to visit his house. For

about one year after the marriage she was happy. Thereafter, she told him that the

accused was ill-treating and demanding Rs. 30,000 for purchase of a motorcycle. She

also disclosed that accused used to beat her. PW3, however, failed to state as to at

what point of time Sharda disclosed him about the said demand. He simply stated

that one and a half years after the marriage said demand was made. In any case, the

said version of PW3 does not indicate that the alleged demand was made soon before

the death of Sharda. PW 4-Janardhan Kharat also deposed that Sharda disclosed him

that accused used to demand the amount for purchasing motorcycle and on that count

she was ill-treated. However, the said version is found to be an improvement in the

testimony of PW 4. Hence, his testimony cannot be relied upon.

12. It is not disputed that Sharda died unnatural death i.e. due to cardio

respiratory arrest due to consumption of organochloro insecticide Endosulphan

(Thiodan). However, the prosecution has not established that soon before the death of

Sharda, she was subjected to cruelty or harassment by accused and such cruelty or

harassment was in connection with demand of dowry. The demand of Rs. 30,000/- is

an improvement made in the version of PW1-Pralhad, who is the real brother of Sharda

and it was naturally expected that Sharda would inform her real brother about the

demand. However the said demand is found to be an improvement in the version of

complainant-PW1-Pralhad.

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CRI.APPEAL.600.03 10

13. Mr. Patil, learned counsel for the appellant placed reliance upon the

decision of the Hon’ble Apex Court, in the case of Appasaheb and another vs. State

of Maharashtra, reported in AIR 2007 SC 763. In that case what was allegedly asked

for by the accused-husband and mother-in-law of deceased was some money for

meeting domestic expenses and for purchasing manure. Since an essential ingredient

of Section 304-B IPC viz, demand for dowry was not established, the conviction of the

appellants could not be sustained. Paragraph No.6 of the said judgment reads thus:

“9. Two essential ingredient of Section 304-B IPC, apart from others,
are (i) death of women is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances, and (ii) women is subjected
to cruelty or harassment by her husband or any relative of her husband
for, or in connection with, any demand for “dowry”. The explanation
appended to sub-section (1) of Section 304-B IPC says that “dowry” shall
have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under :-

“2. Definition of “dowry” – In this Act “dowry” means any property or
valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to
either party to the marriage or to any other person, at or before or any
time after the marriage in connection with the marriage of the said parties,
but does not include dowry or mahr in the case of persons to whom the
Muslim Personal Law (shariat) applies.

In view of the aforesaid definition of the word “dowry” any
property or valuable security should be given or agreed to be given either
directly or indirectly at or before or any time after the marriage and in

A demand for money on account of some financial stringency or
for meeting some urgent domestic expenses of for purchasing manure
cannot be termed as a demand for dowry as the said word is normally
understood.”

14. In the case of Sunil Bajaj vs. State of M.P., reported in AIR 2001 SC

3020, it is held by Hon’ble Apex Court that when no offence was made out, it becomes

necessary to disturb such order of conviction and sentence to meet the demand of

justice. It is only when the ingredients of Section 304B are established by acceptable

evidence such death shall be called “dowry death” and such husband or his relative

shall be deemed to have caused her death. (para 5 and 6)

15. In the case of State of Rajasthan vs. Teg Bahadur and others, reported in (2004

13 SCC 300, Para no.18 thereof reads thus,

“Our attention was drawn to Section 113B of the Evidence Act and Section
304B of the Indian penal Code by the learned counsel appearing for the
accused. A conjoint reading of Section 113B of Indian Evidence Act and
Section 304-B of the Indian Penal Code shows that there must be material
to show that soon before her death the victim was subjected to cruelty or
harassment. The prosecution has to be rule out the possibility of a natural
or accidental death so as to bring it within the purview of “death occurring
otherwise than in normal circumstances..”…..

16. In State of A.P. vs. Raj Gopal Asawa and another, reported in (2004) 4

case at hand. Both Section 304-B IPC and Section 113-B of the Evidence
Act were inserted as noted earlier by the Dowry Prohibition
(Amendment) Act 43 of 1986 with a view to combat the increasing
menace of dowry deaths. Section 113-B reads as follows:-

“113-B: Presumption as to dowry death- When the question is
whether a person has committed the dowry death of a woman and
it is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death.

Explanation For the purposes of this section ‘dowry death’ shall
have the same meaning as in Section 304-B of the Indian Penal
Code (45 of 1860).”

The necessity for insertion of the two provisions has been amply analysed
by the Law Commission of India in its 21st Report dated 10th August,
1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the
impediment in the pre-existing law in securing evidence to prove dowry
related deaths, legislature thought it wise to insert a provision relating to
presumption of dowry death on proof of certain essentials. It is in this
background presumptive Section 113-B in the Evidence Act has been
inserted. As per the definition of ‘dowry death’ in Section 304-B IPC and
the wording in the presumptive Section 113-B of the Evidence Act, one of
the essential ingredients, amongst others, in both the provisions is that
the concerned woman must have been “soon before her death” subjected
to cruelty or harassment “for or in connection with the demand of
dowry”. Presumption under Section 113-B is a presumption of law. On
proof of the essentials mentioned therein, it becomes obligatory on the
Court to raise a presumption that the accused caused the dowry death.
The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has
committed the dowry death of a woman. (This means that the

presumption can be raised only if the accused is being tried for the
offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband
or his relatives. (3) Such cruelty or harassment was for, or in connection
with any demand for dowry. (4) Such cruelty or harassment was soon
before her death.

11. A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be material to show that
soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of the ‘death occurring
otherwise than in normal circumstances’. The expression ‘soon before’ is
very relevant where Section 113-B of the Evidence Act and Section 304-B
IPC are pressed into service. Prosecution is obliged to show that soon
before the occurrence there was cruelty or harassment and only in that
case presumption operates. Evidence in that regard has to be led by
prosecution. ‘Soon before’ is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid
down as to what would constitute a period of soon before the occurrence.
It would be hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of dowry
death as well as for raising a presumption under Section 113-B of the
Evidence Act. The expression ‘soon before her death’ used in the
substantive Section 304- B IPC and Section 113-B of the Evidence Act is
present with the idea of proximity test. No definite period has been
indicated and the expression ‘soon before’ is not defined. A reference to
expression ‘soon before’ used in Section 114. Illustration (a) of the
Evidence Act is relevant. It lays down that a Court may presume that a
man who is in the possession of goods ‘soon after the theft, is either the
thief has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can
come within the term ‘soon before’ is left to be determined by the Courts,

depending upon facts and circumstances of each case. Suffice, however,
to indicate that the expression ‘soon before’ would normally imply that
the interval should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a
proximate and live-link between the effect of cruelty based on dowry
demand and the concerned death. If alleged incident of cruelty is remote
in time and has become stale enough not to disturb mental equilibrium of
the woman concerned, it would be of no consequence.

17. In the case of Rajinder Singh vs. State of Punjab, reported in 2016(1)

“What must be borne in mind is that the word “soon” does not mean
“immediate”. A fair and pragmatic construction keeping in mind the great
social evil that has led to the enactment of section 304B would make it clear
that the expression is a relative expression. Time lags may differ from case
to case. All that is necessary is that the demand for dowry should not be
stale but should be the continuing cause for the death of the married
woman under Section 304B”

18. No doubt, death of Sharda ocurred within 7 years of her marriage and

her death occurred otherwise than under normal circumstances. However, on careful

scrutiny of the evidence on record, there is nothing to suggest that soon before her

death, Sharda was subjected to cruelty by the appellant. The testimony of the

witnesses examined by the prosecution are full of improvement and exaggerations,

hence could not be believed. It is therefore held that the prosecution has failed to